This country-specific Q&A provides an overview to intellectual property law in Turkey.
It will cover intellectual property rights, licensing, enforcement, establishing infringement or liability, and challenges to intellectual property.
This Q&A is part of the global guide to Intellectual Property. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/intellectual-property/
What different types of intellectual property rights exist in this jurisdiction to protect?
(a) Inventions (e.g. patents, supplementary protection certificates, rights in confidential information and/or know-how);
Under Turkish Law, inventions are protected through patent right and utility model.
Patent rights and utility models are granted for inventions in all fields of technology given that they are new, include an inventive step and are applicable to industry. Also, inventions that are not patentable are listed under article 82 of the Industrial Property Law numbered 6769 (“IPL”).
(b) Brands (e.g. trade marks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, traditional speciality guarantees);
Any sign that allows for products or services of an enterprise to be distinguished from those of another enterprise and that is clearly and certainly indicative of the subject of protection are protected under trademarks. Also, brands may be protected through the right to bring an actio negatoria and the right to request prevention of several actions.
Geographical indication protects products identified with a specific region, territory or country of its origin as per a distinct qualification, reputation or other specification. Products manufactured in a traditional way are protected under traditional product names.
(c) Other creations, technology and proprietary interests (e.g. copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in confidential information and/or know-how).
Design right protects the appearance of an industrial or handcraft product, including any parts thereof and compound products, excluding computer programs, provided that the appearance is new and distinguishable.
What is the duration of each of these intellectual property rights? What procedures exist to extend the life of registered rights in appropriate circumstances?
20 years as from the date of application filed before the Turkish Trademark and Patent Authority (the “Authority”). This term cannot be extended.
10 years as from the date of application filed before the Authority. This term cannot be extended.
10 years as from the date of application filed before the Authority. This term can be extended for ten years each time.
5 years as from the date of application filed before the Authority. This term can be renewed for five years each time in a manner extending up to twenty five years in total.
Who is the first owner of each of these intellectual property rights and is this different for rights created in the course of employment or under a commission?
In principle, the first owner of intellectual property rights is the applicant.
In the event that the application is not filed by the real owner of the application, the real owner of the rights may request from the court transfer of ownership or recognition as the owner of the rights within three years as from the announcement of the application for or registration of the relevant right. In that case, the court order may be registered before the registry and published in the Bulletin upon request. As a rule, the employer is the owner of the designs and inventions made by employees in the course of their tasks in an enterprise (or a public institution for inventions) or during the business relationship mainly based on the experience and operations of the enterprise (or public administration).
Apart from those provided above, the rights to designs created by employees by benefiting from the know-how and tools falling under the scope of the general business of the enterprise shall be possessed by the employer upon request while the employee shall be entitled to claim for a consideration for the design.
In that respect, the inventions made by an employee during the business relationship is classified into two which are service invention and free invention. The employee shall be obliged to inform the employer immediately of any service invention in writing provided that the service invention shall turn into a free invention if the employer does not claim any right, partially or wholly, on the relevant service invention in writing within four (4) months as from receiving the relevant notification or else notifies the employee that it shall not claim any right in that regard. In case of demand of full rights, all the rights on the relevant invention shall be transferred to the employer. If, on the other hand, partial rights are demanded, the service invention shall be classified as free invention but the employer shall be able to make use of the invention based on the partial rights granted. Free inventions belong to employees as a general rule. Apart from the conditions where free invention cannot be considered inside the business field of the employer, employees shall be obliged to inform the employer immediately of the free inventions, if any, made during the business relationship.
Which of the intellectual property rights described in questions 1-3 are registered?
Trademarks, geographical indications and traditional product names, designs, patent rights and utility model rights are registered rights.
Who can apply for registration of these intellectual property rights and, briefly, what is the procedure for registration?
Real or legal persons who are domiciled in Turkey or engage in commercial activities in Turkey and those who are entitled to make an application in Turkey based on the relevant international agreements. The trademark registration procedure consists of application, formal analysis, review of the application in terms of definite grounds for refusal and publication of the same, assessment of the opinions and objections of third parties and registration of the application.
Patent registration procedure, on the other hand, consists of application, formal analysis, issuance of research report, announcement in the Bulletin, review phase and issuance of an investigation report, and registration processes. Registration of design rights consists of application, formal analysis, entry into the registration and announcement in the Bulletin, assessment of the objections of third parties and registration processes.
Registration of geographical indications and traditional product names consists of application, formal analysis, and announcement in the Bulletin, assessment of the objections of third parties and registration processes.
How long does the registration procedure usually take?
Registration procedure takes around one year although this duration might vary owing to existence or lack of any objection for the application. Trademark registration procedure takes around 11 months while this duration is around 2 to 5 years for patent registration, around 1 to 1.5 year for utility model registration and around 1 year for design registration.
Do third parties have the right to take part in or comment on the registration process?
Yes, third parties may file an objection against the registration of the relevant intellectual property right on certain matters upon the announcement of the applications for trademark rights, geographical indications, design rights and patent rights. Also, third parties may indicate their opinions as to the fact that the rights related to the trademarks and patents should not be registered and comment on the content of the research report issued for any utility model and the Authority may reject the application partially or wholly based on those opinions and comments.
What (if any) steps can the applicant take if registration is refused?
The parties that suffer from negative impacts of the decisions made by the Authority (including the decision to reject the application for the relevant right) may file a written objection along with the justifications thereof within two (2) months as from the notification of the decision. It is essential to pay the objection fee and submit documentary proof to the Authority within two (2) months’ objection duration before the objection is taken into consideration. The decision to be rendered by the Board of Revision and Re-Assessment (the “Board”) about the objection shall constitute the basis for the final decision of the Authority.
What are the current application and renewal fees for each of these intellectual property rights?
For single class trademark application, the fee is TRY 205 in case of online application or TRY 305 in case of application through reservation.
For trademark application additional class, the fee is TRY 205 in case of online application or TRY 305 in case of application through reservation.
For trademark registration, the fee is TRY 840 in case of presentation of hard copies or TRY 560 in case of online application.
For trademark renewal, the fee is TRY 1,065 in case of presentation of hard copies or TRY 710 in case of online application.
For trademark renewal upon expiry of protection term, the fee is TRY 1,600 in case of presentation of hard copies or TRY 1,065 in case of online application.
For patent application, the fee is TRY 40 in case of online application or TRY 80 in case of application through reservation.
For each year, the registration fee ranges from TRY 325 to TRY 3,070 in case of presentation of hard copies or TRY 215 to TRY 2,045 in case of online application.
For registration, the fee is TRY 145 in case of online application or TRY 215 in case of application through reservation.
For registration of additional designs, the fee is TRY 100 in case of presentation of hard copies or in TRY 65 in case of online application.
For publication, the fee is TRY 60 in case of presentation of hard copies or TRY 40 in case of online presentation of copies.
For renewal of each design, the application fee is TRY 645 in case of presentation of hard copies or TRY 430 in case of online application.
For renewal of each additional design, the application fee is TRY 90 in case of presentation of hard copies or TRY 60 in case of online application.
Geographical Indications/Traditional Product Names
The application fee is TRY 40 in case of presentation of hard copies or TRY 25 in case of online application.
The Registration Certificate Issuance and Registration Fee is TRY 75 in case of presentation of hard copies or TRY 50 in case of online application.
For amendment to the applicant or registering party, the fee is TRY 40 in case of presentation of hard copies or TRY 25 in case of online application.
What are the consequences of a failure to pay any renewal fees and what (if any) steps can be taken to remedy a failure to pay renewal fees?
The owner of any trademark should file an application for the renewal of the protection term to the Authority within six months before the expiration date of the protection term provided that the renewal fee shall be deposited within the prescribed term and a document proving the payment is duly submitted to the Authority. If the document certifying payment of renewal fee is not submitted to the Authority within the prescribed term, the owner of the trademark may file an application for renewal within six months as from the expiration date of the protection term by depositing an additional fee. If the renewal is not deposited meaning that the right is not renewed, the relevant right shall expire on the deadline of the protection term. Consequences of a failure to pay renewal fees for other intellectual property rights are not regulated under IPL. Furthermore, no renewal process is regulated for traditional product names and geographical indications since they provide protection for an unlimited period of time.
What are the requirements to assign ownership of each of the intellectual property rights described in questions 1-3?
Industrial property rights can be assigned with the exception of geographical indications and traditional product names. The assignment should be documented in writing and certified by a notary.
Is there a requirement to register an assignment of any of these intellectual property rights and, if so, what is the consequence of failing to register?
It is not obligatory to register the assignment of patent applications, patents or trademarks but if any such action is duly registered by the registry, it might be used in claims against third parties in goodwill. For assignment agreements to be registered, they should be in written form, certified by a notary and include the assignment fee.
What are the requirements to licence a third party to use each of the intellectual property rights described in questions 1-3?
Trademark rights may be documented in an exclusive or non-exclusive license agreement for all or part of the commodities or services that are registered under such trademark. Unless otherwise provided in the agreement, the license shall not be exclusive and the license holders shall not be entitled to assign or sub-license their rights arising from the license to third parties. Limitations to the use of trademark rights by third parties shall be determined according to the license agreement.
Design rights may constitute the basis of license agreements just as trademark rights.
While patent rights may be documented through a license agreement just as the trademark rights, IPL also sets forth the conditions where compulsory license shall be issued for a patent. In the event that any license is granted through an agreement, the licensor shall be obliged to provide the licensee with the technical information required for the normal use of the invention subject to the patent. Licensee, on the other hand, shall be obliged to protect the confidentiality of the confidential information disclosed to it. The owner of the patent application or patent may notify the fact that it intends to issue licenses to everyone for the invention subject to the patent through a written request it shall submit to the Authority upon which the proposal to grant licenses shall be announced in the Bulletin. Nevertheless, if there appears any exclusive license in the registration, the owner of the patent application or patent cannot offer to issue licenses to third parties. Compulsory licenses are not exclusive in principle, however compulsory licenses issued for public benefit may be exclusive. It is not possible to assign or sub-license a compulsory license. Also, if any person benefiting from a project supported by public institutions and organizations claims title to the rights on the invention, the relevant public institution or organization shall hold a free license right for the use of the invention for its own requirements according to IPL.
Is there a requirement to register a licence of any of these intellectual property rights and, if so, what is the consequence of failing to register?
Trademark, design and patent rights may be included in a license agreement and there is no obligation to register such agreements. Also, as it is indicated above, patent rights may be subject to compulsory licenses but there is no legal provision as to the registration of any court order or Board decision related to a compulsory license. The registration is of an explanatory nature in that the license right gains the status of reinforced personal right since registration allows such right to be alleged against third parties in goodwill.
Are exclusive and non-exclusive licensees given different rights in respect of the enforcement of the licensed IP, and if so, how do those rights differ?
License agreements related to trademark, design and patent rights shall be executed for granting an exclusive or non-exclusive license. The license isn’t exclusive unless otherwise provided in the agreement. The licensor may use the trademark itself and issue licenses to third parties in case of non-exclusive license agreements. As for exclusive license agreements, the licensor shall not be entitled to grant license to third parties and it cannot use the trademark itself unless it explicitly reserves any such right.
Are there criminal sanctions for infringement of any intellectual property rights, and if so, what are they and how are they invoked?
There are a number of criminal provisions related to the infringement of trademark rights. If the relevant trademark is registered in Turkey, any person who infringes trademark rights of third parties shall be sentenced to imprisonment from one year to three years and administrative fine up to twenty thousand days; any person who removes an indication of trademark protection from the commodity or package without authorization to do so shall be sentenced to imprisonment from one year to three years and administrative fine up to five thousand days; and any person who makes disposal on the trademark of third parties without authorization to do so shall be sentenced from two years to four years and administrative fine up to five thousand days. If those crimes are committed in the course of the activities performed by a legal person, additional security measures shall be adopted. Inquiry and investigation of the relevant crimes shall depend on receiving any complaint in that regard. No criminal sanctions for infringements of other intellectual property rights are regulated under IPL.
What other enforcement options are available in your jurisdiction for each of the intellectual property rights described in questions 1-3? For example, civil court proceedings, intellectual property office proceedings, administrative proceedings, alternative dispute resolution.
Infringement of trademark rights requires imprisonment and administrative fine. In addition, the affected party may demand the court to ascertain and put an end to the infringement, and seize the instruments used for infringement for each of the rights and request for determination of the actual owner of the design or patent rights if any design and patent application is filed by a person who does not have the title to those rights implying that the design or patent is misappropriated. In case of infringement of industrial property rights, the owner of the relevant right may make claims for material and non-material damages from the party infringing those rights. In case of objection to the announcement of any industrial property right and the decisions to be made by the Board as a result of the assessment of the objection, the Authority may encourage the parties to take up settlement processes. IPL does not provide any right to litigation or claim apart from those provided above.
What is the length and cost of such procedures?
The criminal cases indicated in our response to question 16 above may be marked with some differences according to the court having jurisdiction over the court but it takes around 1-2 years to conclude any such procedures. Turkish law does not provide for any court fees for criminal procedures. If the defendant is not an ex-convict, the criminal courts generally order for deferment of the announcement of the verdict and this verdict cannot be appealed; an objection could be posed to a superior court upon which that court shall review the deferment of the announcement of the verdict. If the verdict is announced as a result of the litigation, it shall be possible to appeal the same before the court of appeal. Any appeal before courts of appeal shall take around 6 months while this duration shall be around 1.5-2 years if the appeal is brought before the Supreme Court of Appeal.
The duration of declaratory actions, actions for suspension and actions for damages related to the infringement of the trademark could vary according to the court but they usually take around 2-2.5 years. Appeals before senior courts shall take around 2 years. For declaratory actions and requests for suspension, it shall be essential to deposit a fixed charge. Although court fees change according to the process, the cost is usually around TRY 3,000 and TRY 3,500. Actions for damages shall be subject to payment of relative charges. Court fees, on the other hand, shall be around TRY 3,000.
Where court action is available, please provide details of which court(s) have jurisdiction, how to start proceedings, the basics of the procedure, the time to trial, the format of the trial, the time to judgment and award of relief and whether any appeal is available.
The court having jurisdiction on cases falling under the scope of IPL shall be the court of intellectual and industrial rights and criminal court of intellectual and industrial rights. If a civil court of intellectual and industrial rights is not available in a certain district, the civil court of first instance shall have jurisdiction. If a criminal court of intellectual and industrial rights is not available, it shall be replaced by the criminal court of first instance. With respect to litigations to be filed by the owner of industrial property rights against third parties, the court having jurisdiction shall be the one that is located in (i) the domicile address of the claimant, (ii) the place where the action infringing the law was committed or (iii) the place where the effects of this action are observed. If the claimant is not domiciled in Turkey, the court having jurisdiction shall be the one where the registered office of the owner’s agent that is entered into the registration is available or, if the claimant no longer has an agent, the court where the head office of the Authority is located (Ankara). Regarding the litigations to be filed by third parties against the owner of industrial property rights, the court having jurisdiction shall be the one that is located in the domicile address of the respondent (that is, the owner of industrial property rights). If the applicant or owner of industrial property rights is not domiciled in Turkey, the court having jurisdiction shall be the one where the registered office of the owner’s agent that is entered into the registration is available or, if the owner no longer has an agent, the court where the head office of the Authority is located (Ankara). As for the litigations to be filed against the Authority, Ankara Civil Court of Intellectual and Industrial Rights shall have jurisdiction.
Litigations filed for intellectual and industrial property rights shall be subject to written proceedings and it shall be essential to conclude the litigation in a reasonable time based on the right to fair trial. It shall be possible to appeal the finalized verdicts of the court as well as rejection of provisional injunction and precautionary distraint requests and verdicts to be rendered upon objection against the acceptance of any such request.
How does the court acquire any necessary information (fact or technical) and in what circumstances does it do so?
a) Is there a technical judge, a judge with technical experience, a court appointed expert, an expert agreed by the parties, and/or parties' expert witness evidence?
Courts of intellectual and industrial rights are specialized courts in that the judges assigned in those courts are educated and specialized on intellectual and industrial rights. The court shall be comprised of a single judge with the aforementioned qualifications. In the event that the parties make any such request or the court deems necessary and the judge deems fit, experts on intellectual and industrial rights may be assigned to conduct an expert review. In that case, the expert shall be assigned by the court, not by the parties. Still, the parties may consult and receive the opinions of an expert about the particulars of the case and any such opinion shall be considered by the judge as a discretionary proof just like the expert report.
b) What mechanisms are available for compelling the obtaining and protecting of evidence? Is disclosure or discovery available?
The dominant principle of the Civil Procedure Code (“CPC”) is that anything related to the litigation should be brought to the attention of the judge by the parties and according to article 25 of CPC, the judge shall not consider the occurrences and events that are not mentioned by the parties ex officio and remind the parties of those points. Apart from the circumstances specified in the law, the judge cannot collect evidence of his/her own accord. CPC does not provide for any evidence discovery and disclosure mechanism similar to the Anglo-American law systems.
Also, the judge may ask the parties to submit evidence based on the duty of illuminating the particulars of the case. If any of the parties intends to submit any information and documentation maintained by the opponent party as evidence, such information and documentation may be submitted only in case of existence of some conditions indicated in the law and upon the relevant court order. Yet, even in such cases, the party keeping the relevant information and documentation may have lost it or may avoid submitting it even if not lost. In such cases, the relevant party shall be asked to take oath under the principle of honesty and integrity that it carefully looked for but could not find the documentation or information and that shall be the sole remedy in that respect.
Before filing an action for damages owing to infringement of the industrial property rights, the owner of the right may request the court to issue an order for submission of the documents related to the use of industrial property rights by the respondent party so as to ensure determination of the evidence or the amount of the damages incurred under the action for damages.
How is information and evidence submitted to the court scrutinised? For example, is cross-examination available and if so, how frequently is it employed in practice?
The evidence shall be assessed by the judge freely. Under Turkish Law, only judges are entitled to conduct the examination procedure, therefore, there is no provision for cross-examination on the contrary to the indictment system. Cross-examination is comparable to the “direct questioning” concept provided under CPC in doctrine but the difference is that indictment system provides that cross-examination shall be conducted by attorneys while Turkish Law provides that examination shall be conducted by the judge and in that respect, the attorneys are not able to take part in the examination in practice.
What customs procedures are available to stop the import and/or export of infringing goods?
The parties may ask the courts to render provisional injunction decisions for seizure and safekeeping of any products manufactured by means of infringement of industrial property rights or import products which are subject to any infringement, tools for manufacturing those products or tools used for performing the patented procedures in any place within Turkey including customs administrations and free ports or zones. Also, according to Customs Law no. 4458, in case of infringement of any protected rights under the legislations on intellectual and industrial rights, the customs administrations may seize or stop the customs clearing procedures of the commodities subject to the infringement upon the demand of the owner of the right or its attorney. If it becomes clear that any commodity infringes an intellectual and industrial right although there is no such request, the customs administrations may seize or stop the customs clearing procedures of the commodities ex officio for three business days so as to allow the relevant party to make any request.
Are any non-court enforcement options or dispute resolution mechanisms mandatory in respect of intellectual property disputes in any circumstances? If so, please provide details.
What options are available to settle intellectual property disputes in your jurisdiction?
IPL provides that any disputes related to intellectual and industrial rights shall be settled through litigation. Notwithstanding this fact, when the advantages arising from practices and alternative remedies applied in the world are interpreted along with the fact that the Authority provided in IPL may invite the parties to make a settlement if it deems necessary, it occurs that such disputes could be resolved through alternative remedies although such remedies have not been adopted in practice for the time being.
What is required to establish infringement of each of the intellectual property rights described in questions 1-3? What evidence is necessary in this context?
What defences to infringement are available?
In the event that any registered trademark contains the name or address of real persons, makes explanations about the type, quality, quantity, intended use, value, geographical source, manufacture or presentation time or attributes of the commodities or services or else they are incorporated into especially accessories, spare parts or equivalent parts in cases where it is necessary to indicate the intended use of the commodities or services, the owner of the trademark may not prevent any such use. Also, the use of geographical indications or traditional product names shall constitute use in goodwill under IPL to the extent that any such use of the name of the real person or title of the legal person in terms of geographical indications or traditional product names does not mislead the public for commercial purposes and such uses shall not constitute infringement of the relevant rights.
Who can challenge each of the intellectual property rights described in questions 1-3?
Upon the announcement of any trademark application, third persons may inform the Authority in writing of their opinions as to the claim that the application should not be registered owing to absolute grounds for refusal. Also, the relevant persons should file a written objection along with the applicable objections to the Authority as to the claim that the application should not be registered owing to absolute and/or relative grounds for refusal. The persons who can file an objection to the registration of trademark applications shall be the owner of the relevant trademark, owner of mark and owner of the previous trademark as provided in the justifications for the relative rejection constituting the basis for the objection. Third persons or the owner of any previous right may file an objection claiming that the registration application for geographical indications and traditional product names does not fulfil the requirements for the application. Third persons may also file a written objection claiming that the design and patent should not be registered by depositing the relevant objection fee and submitting the documentary proof for payment to the Authority.
When may a challenge to these intellectual property rights be made (e.g. during any registration process or at any time during the subsistence of the right)?
Third persons are entitled to inform the Authority of their opinions from the announcement date of the trademark application till the registration date whereas they shall be required to submit their objections within two (2) months as from the announcement of the application in the Bulletin; objections against the registration of the patent within six (6) months as from the announcement of the decision for granting the patent in the Bulletin; objections against the registration of the design within three (3) months as from the announcement of the application in the Bulletin; and objections against the registration of the geographical indications and traditional product names within three (3) months as from the announcement of the application in the Bulletin.
Briefly, what is the forum and the procedure for challenging each of these intellectual property rights and what are the grounds for a finding of invalidity of each of these intellectual property rights?
Any objections regarding the registration of intellectual property right shall be filed to the Authority.
In case of objections to be made in relation to the registration of trademark rights, the Authority asks the applicant to submit its opinions about the objections in due time. The Authority may also demand the parties to submit additional information and documentation if it deems necessary. If any objection is filed for a trademark application on grounds that there is already a trademark right that has been registered for the same commodities and services, upon the request of the applicant, the party filing that objection shall be asked to provide evidence proving that the registered trademark constituting basis for the objection has been substantially used in Turkey for the last five years before the date of the application or priority rights, or if not used, there have been justifiable reasons for non-use of the trademark provided that the trademark constituting the basis for the objection should be registered for minimum five years in Turkey as of the relevant application or priority date. If a review into the objection reveals that the trademark should not be registered for all or part of the commodities and/or services constituting the basis for application, the registration application shall be rejected for only those commodities and/or services. The Authority may also invite the parties to make a settlement. Those affected negatively from the decisions rendered by the Authority on account of the objections may file a written objection along with the justifiable reasons to the Authority within two (2) months as from the notification of the decision after depositing the relevant fee specified for such an objection and submitting the documentary proof of payment to the Authority. The Board shall ask the parties to submit their opinions on the objection in due time in addition to asking for additional information and documentation if necessary. The decision to be rendered by the Authority upon the review of the objections shall be the final decision of the Authority in that regard and it shall be necessary to file a litigation before the civil court of intellectual and industrial rights in order to ask for cancellation of the decision to reject the objection or application. Article 5 of IPL lists the absolute grounds for refusal of trademark registration conclusively while article 6 provides for the relative grounds for refusal. Trademark registration applications including the indications that do not constitute trademark, indications that do not have any distinctive quality or indications that are used commonly by everyone in trade are regarded as absolute grounds for refusal under article 5 according to which the Authority shall conduct a review on ex officio basis. Besides, if the registration is made despite the existence of those conditions resulting in any objection by third parties claiming that the registration should not be made, a review can be conducted, as well. Article 6 of IPL lists the relative grounds for refusal. In that respect, if a trademark intended to be registered is the same as or similar to another trademark that is already registered or subject to an on-going application and if the commodities and services to be marketed under those trademarks are same or similar giving rise to the probability that the trademark intended to be registered could be confused with the trademark that is already registered or subject to an on-going application by the public opinion, this shall constitute a relative reason for rejection and any such application shall be rejected upon application by the relevant parties.
Third persons or the owner of any previous right may file an objection against the registration of geographical indications and traditional product names on grounds that the relevant application does not fulfil the requirements for application by depositing the relevant objection fee in due time and submitting the documentary proof for payment to the Authority. After that, the Authority shall ask the applicant to submit its opinions about the objection. The Authority may also consult relevant institutions or organizations if it deems necessary. If any such institution or organization demands a fee to provide an opinion, such fee shall be paid by the Authority. The Authority may invite the parties to make a settlement if it deems necessary. If the application is modified in terms of form or content as a result of the review of the objection, the final version of the application shall be announced in the Bulletin by underlining the modification and the parties shall not be entitled to object to this announcement. If the Authority decides to reject the application, this decision shall be announced in the Bulletin.
The objection procedure for design application consists of objection to the registration following the completion of the registration, requesting the applicant to provide its opinions in due time, acceptance of the objection partially or wholly leading to the rejection of the registration partially or wholly and application of the provisions regarding nullity of the design on account of such rejection. The decision for nullity shall be announced in the Bulletin.
Third parties may file an objection against any patent on grounds that (i) the subject matter of the patent is not suitable for patenting, (ii) the invention is not explained satisfactorily, or (iii) the subject matter of the patent does not remain limited to the initial version of the application within six (6) months as from the announcement of patent decision in the Bulletin by paying the relevant fee and submitting the documentary proof for payment to the Authority. The patent holder may submit its opinions about the objection or amend its application within three (3) months as from becoming informed of the objection. The objection shall be reviewed by the Authority with due regard for the opinions of the applicant or amendments to the patent application. As a result of the review, the Authority shall decide for the validity of the patent or the amended version or else nullity thereof. In case of nullity decision, the patent shall become null and void and the relevant decision shall be announced in the Bulletin. If the Authority decides that the patent or amended version of the patent shall remain valid partially, the Authority shall ask the patent holder to make the necessary amendments within two (2) months as from the notification of the decision. In the event that the requested amendments are not made in due time or the amendments that are proposed are not acceptable, the Authority shall decide for the nullity of the patent based on the conditions provided above.
Are there any other methods to remove or limit the effect of any of the intellectual property rights described in questions 1-3, for example, declaratory relief or licences of right?
Design rights, trademark rights and patent rights may be documented through an agreement for issuing an exclusive or non-exclusive license right to a third person. The limitations of the use of the right shall be determined according to the license agreement and license shall not be exclusive unless otherwise provided in the agreement. The rights arising from the license cannot be assigned and sub-licensed to another party. In case of exclusive licenses, the licensor shall not be entitled to grant license to third parties and it cannot use the trademark itself unless it explicitly reserves any such right. As for non-exclusive licenses, the licensor may use the trademark itself and issue other licenses to third persons. Also, the patent right may be restricted through a mandatory license under certain conditions.
What remedies (both interim and final) are available for infringement of each of the intellectual property rights described in questions 1-3?
Owners of rights whose industrial property rights are infringed may file a litigation before the relevant court to ask for (i) determination of whether or not the action is an infringement, (ii) prevention of any potential infringement, (iii) putting an end to the infringement, (iv) elimination of the infringement, (v) indemnification of material and non-material damages, (vi) seizure of products constituting infringement as well as tools solely used for manufacturing those products or tools for performing the patented procedures, (vii) granting ownership rights to the applicant in relation to the seized products, equipment and machines, (iix) introduction of measures for preventing the continuation of the infringement, and (ix) announcement of the final verdict in a daily newspaper or similar means of publication in its entirety or as a summery and notification of the same to the relevant parties by imposing the costs on the opponent party if any justifiable reason or benefit exists in that respect. IPL provides the crimes that can be prosecuted upon complaint in case of infringement of trademark rights as well as the penalties to be applied for those crimes. The owner of the right shall be entitled ask the court to issue an order for a number of provisional injunctions before or during the litigation for the infringement of the industrial property rights by proving the existence or potential threat of any action that constitutes infringement. Those provisional injunctions include, without limitation, the prevention and discontinuation of the infringement of the right, seizure of products manufactured by means of infringement of the right or else constituting basis for infringement and granting a security for the indemnification of any loss.
What are the costs of enforcement proceedings and is any kind of costs recovery available for successful parties? Is there a procedural mechanism enabling or requiring security for costs?
The expert fee is TRY 330 in civil court of intellectual and industrial rights. Other court charges vary according to the type of the litigation as well as the set value of the litigation, if it is known. The contractual attorney fee payable to the attorney shall be determined by the client and attorney with due regard for the efforts and experience of the attorney. The client shall have to pay the attorney fee regardless of the outcome of the litigation. The attorney shall also be entitled to the attorney fee which shall be determined according to the particulars of the litigation and duly included in the court costs but this attorney fee shall be payable by the party losing the case along with the court costs. Besides, if any party intends to claim for damages, such party may ask the court to order for a provisional injunction to ensure that the party which shall be obliged to pay an indemnification can provide a guarantee for the relevant payment before taking any action for damages. Also, the general procedure rules under CPC provide that the court may, in its sole discretion, order the respondent to provide a suitable guarantee for the court costs. The case shall be rejected on procedural basis unless the relevant guarantee is deposited within the definite duration determined by the judge.